Fowler, R (on the application of) v Secretary of State for Communities & Local Government & Anor

A statutory challenge to a planning or listed-building decision is confined to errors of law and non-compliance with relevant legal requirements. The court does not reconsider the planning merits or substitute its view of the facts for that of the inspector. An inspector must address the main issues and give adequate and intelligible reasons, but need not record every evidential detail or material consideration. Where an error of law or material procedural failure is established, the statutory remedy is ordinarily confined to quashing the decision. A tree preservation order does not itself prevent permission for development requiring a tree’s removal.

Dr James Fowler challenged an inspector’s decision dated 21 August 2008. Appeal A concerned refusal of listed-building consent for the demolition and reconstruction of a listed house and associated works. Appeal B concerned refusal of planning permission for reconstruction, extensions, a new house, a garage and car port, and related works.

The challenges were brought under Planning (Listed Buildings and Conservation Areas) Act 1990 and Town and Country Planning Act 1990. The central questions were whether the inspector had erred in law, failed to take material considerations into account, acted irrationally, or failed to give adequate reasons.

1. Appeal dismissed. The claimant failed to establish any error of law in either appeal. The Secretary of State’s costs were summarily assessed at £5,500. No costs were awarded to the London Borough of Ealing as a third party.
2. Under sections 63 and 288, the court may intervene where the inspector acts outside the statutory powers, fails to comply with a relevant legal requirement, or reaches a decision so irrational that no properly directed inspector could have reached it. The court does not decide the planning merits or substitute its own factual judgment.
3. The relevant requirement to give reasons means providing adequate and intelligible reasons addressing the main issues. An inspector may assume an informed readership and need not list every material consideration or evidential detail. Intervention is justified only where the reasons leave a genuine doubt about the inspector’s view on an important issue.
4. The inspector had fairly recorded the listed building’s poor condition. His reference to bulging walls, together with his site inspection and consideration of the structural reports, showed that he had not overlooked the building’s structural condition.
5. The inspector applied the correct approach under paragraph 3.19 of Planning Policy Guidance Note 15. The evidence did not establish that demolition and reconstruction were justified. The inspector was entitled to conclude that the repair evidence, conservation information and financial evidence were insufficient.
6. The inspector was entitled to treat later additions as contributing to the building’s special architectural interest, even if some additions were structurally ill-advised. Architectural interest may arise from the way a building has developed over time.
7. The inspector’s treatment of the two protected trees was favourable to the claimant. A tree preservation order would not prevent implementation of planning permission requiring removal or damage to protected trees. The proposed new house nevertheless failed to preserve the setting of the listed building and was not justified by the proposed conservation benefits.
8. The court’s statutory power was limited to quashing or refusing to quash the challenged decision. It did not extend to awarding damages or investigating peripheral matters.

• Inspector: On 21 August 2008, Mr Bagot dismissed the listed-building and planning appeals.
• High Court (Administrative Court): The court dismissed the challenge and ordered the claimant to pay the Secretary of State’s costs assessed at £5,500.